Diplomacy/International

Lack of Free, Fair Elections as a Key Source of Conflict: Holding ECOWAS Member States accountable for their treaty obligations and the sanctions regime, II

Paul Ejime

Parameters for Free, Fair and Transparent Elections under the Protocol on Democracy and Good Governance.

The 2001 Supplementary Protocol on Democracy and Good Governance has 50 Articles. The protocol has no definition of what constitutes free, fair, and transparent elections, but the articles deal with sundry issues ranging from fighting corruption to poverty alleviation and social dialogue: the role of stakeholders during elections, political inclusivity, protection of women and children’s rights and sanctions against non-compliance with provisions of the protocol.

Section I: “Constitutional Convergence Principles” Of The Protocol

Article 1 states the constitutional principles shared by all Member States:

a) Separation of powers – the Executive, Legislative and Judiciary. – Empowerment and strengthening of parliaments and guarantee of parliamentary immunity. – Independence of the Judiciary: Judges shall be independent in the discharge of their duties. – The freedom of the members of the Bar shall be guaranteed, without prejudice to their penal or disciplinary responsibility in the event of contempt of court or breaches of the common law.

 

b) Every accession to power must be made through free, fair, and transparent elections.

 

c) Zero tolerance for power obtained or maintained by unconstitutional means.

 

d) Popular participation in decision-making, strict adherence to democratic principles and decentralisation of power at all levels of governance.

 

e) The armed forces must be apolitical and must be under the command of a legally constituted political authority; no serving member of the armed forces may seek to run for elective political office.

f) Secularism and neutrality of the State in all matters relating to religion; freedom for each individual to practise, within the limits of existing laws, the religion of his/her choice everywhere on the national territory. The secularism shall extend to all parts of the State but shall not deprive the State of the right to regulate, with due respect to human rights, the different religions practised on the national territory or to intervene when law and order break down as a result of any religious activity.

g) The State and all its institutions belong to all the citizens; therefore, none of their decisions and actions shall involve any form of discrimination, be it on an ethnic, racial, religion or regional basis.

h) The rights set out in the African Charter on Human and People’s Rights and other international instruments shall be guaranteed in each of the ECOWAS Member States; each individual or organisation shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution established within the framework of an international instrument on Human Rights, to ensure the protection of his/her rights.

i) Political parties shall be formed and shall have the right to carry out their activities freely, within the limits of the law. Their formation and activities shall not be based on ethnic, religious, regional, or racial considerations. They shall participate freely and without hindrance or discrimination in any electoral process. The freedom of the opposition shall be guaranteed. Each Member State may adopt a system for financing political parties, in accordance with criteria set under the law.

j) The freedom of association and the right to meet and organise peaceful demonstrations shall also be guaranteed.

k) The freedom of the press shall be guaranteed.

In the absence of a court of special jurisdiction, the present Supplementary Protocol shall be regarded as giving the necessary powers to common or civil law judicial bodies.

Section II On Elections

1. No substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of political actors.

 

2. All elections shall be organised on the dates or at periods fixed by the Constitution or the electoral laws.

 

3. Member States shall take all appropriate measures to ensure that women have equal rights with men to vote and be voted for in elections, to participate in the formulation of government policies and the implementation thereof and to hold public offices and perform public functions at all levels of governance.

 

4. The bodies responsible for organising the elections shall be independent or neutral and shall have the confidence of all the political actors. Where necessary, appropriate national consultations shall be organised to determine the nature and the structure of the bodies.

 

5. Each ECOWAS Member State shall ensure the establishment of a reliable registry of births and deaths. A central registry shall be established in each Member State.

 

5.a. Member States shall cooperate in this area with a view to exchanging experiences and where necessary providing technical assistance to each other in the production of reliable voters’ lists.

 

6. The voters’ lists shall be prepared in a transparent and reliable manner, with the collaboration of the political parties and voters who may have access to them whenever the need arises.

 

7. The preparation and conduct of elections and the announcement of results shall be done in a transparent manner.

 

8. Adequate arrangements shall be made to hear and dispose of all petitions relating to the conduct of elections and announcement of results.

 

9. Member States shall use the services of civil society organisations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence.

 

10. The party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law.

 

11. All holders of power at all levels shall refrain from acts of intimidation or harassment against defeated candidates or their supporters.

 

Similarly, Article 19 says: “The armed forces and police shall be non-partisan and shall remain loyal to the nation. The role of the armed forces shall be to defend the independence and the territorial integrity of the State and its democratic institutions.” It further states that “the police and other security agencies shall be responsible for the maintenance of law and order and the protection of persons and their properties.”

 

Article 22 states: “The use of arms to disperse non-violent meetings or demonstrations shall be forbidden. Whenever a demonstration becomes violent, only the use of minimal and/or proportionate force shall be authorised; All cruel, inhuman and degrading treatment shall be forbidden; The security forces, while carrying out investigations, shall not disturb or arrest family members or relations of the person presumed guilty or suspected of having committed an offence.”

 

Article 32 expressly states: “Member States agree that good governance and press freedom are essential for preserving social justice, preventing conflict, guaranteeing political stability and peace and for strengthening democracy.”

 

Finally, Article 33: commits member States to “recognise that the rule of law involves not only the promulgation of good laws that are in conformity with the provisions on human rights, but also a good judicial system, a good system of administration, and good management of the State apparatus.”

To be continued…

Paul Ejime, an author, and Global Affairs Analyst, is a Consultant on Strategic Corporate Communication, Media Development and Governance Issues, including Peace & Security and Elections

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